Whose Egg Is It, Anyway? An Embryo-Custody Battle

She’s desperate to bear a child; he refuses to be the father. While Augusta and Randy Roman duke it out in court, three embryos they created together are on ice. Welcome to the custody battle of the future.

By Louise Farr

There is conflicting legislation in Texas regarding the status of embryos, says Reitz. "The penal code has recently been amended to state that life begins at the point of conception for the purpose of prosecuting people who cause a fetus to die by killing or injuring its mother. But embryos created with the IVF process are not subject to the penal code. And the family code does not view frozen embryos as children…. They’re considered property." If Augusta’s bid to appear before the Texas supreme court is granted, it will be the first such case to reach that level in the state. Reitz hopes it will be a legislative call to arms to give fertilized embryos protected status.
"The law is having trouble keeping up with technology," she says. If the motion is declined, Augusta will have to decide if she wants to take her case to the U.S. Supreme Court.
Despite the fact that she supports Augusta’s contention that life begins at conception, Rebecca Reitz is pro-choice. Roe v. Wade, she asserts, guarantees a right to reproductive privacy that, in essence, runs both ways. "Our legislatures cannot require us to have an abortion," she says. "So I don’t think it should be any different than if Augusta had gotten pregnant any other way. Life has been created."
If you buy the argument that judges should not require a woman to "abort" an embryo, implanted or not, what about the notion that a man should not be required to produce children against his will?
"I understand the argument — ‘I’m not in love with this woman anymore, and I need a complete break,’" says Ellen Waldman, a professor at Thomas Jefferson School of Law, in San Diego. "But when you weigh that against the individual looking for this very special relationship [with a child], which is not easy to create, I don’t think the argument measures up." She suggests that judges consider the human yearning for childbearing, then weigh possible alternatives before awarding embryo custody — adoption, perhaps, or donor eggs or sperm. Ultimately, they could create a "last chance" standard for someone looking at his or her only option for having a biological child.
This line of thinking alarms Theresa Erickson, a 40-year-old San Diego attorney who specializes in reproductive law. Years ago, as a married law school student with two children, Erickson became a repeat egg donor herself, and she sympathizes with infertile women. But, she says, "if we make rulings that say, ‘If it’s her only embryo, let her use it,’ then we may step into an era where, if a woman wants to have an abortion, then the man could have a similar right to weigh in. It’s a slippery slope."
A slippery slope where, theoretically, a man claiming a constitutional right to parenthood might be able to implant an embryo made with his ex-wife’s egg in another woman.
And yet, isn’t that eerily similar to what Randy Roman wants to avoid? "There’s an element of rape or assault if someone makes a child with your gamete without your permission," insists Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania, Philadelphia. "If a divorced couple can’t agree, then it shouldn’t be used," he says.
That buzzing noise you hear? It’s the sound of King Solomon’s head spinning.
This is not where Augusta, who now uses her maiden name of Nzoiwu, expected to be at midlife — without a family and in a state of limbo, her biological options running out. "I’m consumed with getting my kids and moving on," she says, rubbing wearily at her face. Her court fight leaves her little free time. At one point she held down three jobs to pay legal fees that have now mounted to more than $60,000. "Catching up on sleep, that’s my lightening up," she says. "Dating is the last thing on my mind."
Reitz has stopped billing her, but Augusta charged $15,000 to her credit card to pay for Pamela George’s appellate work. She even tried, unsuccessfully, to sue Randy for fraud.